Jacobini v. Hall

• Decision Date: 22 October 1986
• Docket Number: No. 2-85-257-CV,2-85-257-CV
• Citation: 719 S.W.2d 396
• Parties: Louis JACOBINI, Appellant, v. Dora Leslie HALL, Appellee.
• Court: Texas Court of Appeals

Page 396

719 S.W.2d 396

Louis JACOBINI, Appellant, v. Dora Leslie HALL, Appellee.

No. 2-85-257-CV.

Court of Appeals of Texas,

Fort Worth.

Oct. 22, 1986.

W.T. Catterton, Fort Worth, for appellant.

Wells, Williford & Felber, and Mike Felber, Fort Worth, for appellee.

Before JOE SPURLOCK, II, HILL and HUGHES (Retired, Sitting by Assignment), JJ.

OPINION

W.A. HUGHES, Senior Justice (Retired).

Louis Jacobini has appealed the judgment rendered against him in favor of appellee, Dora Leslie Hall, for damages in the sum of $920,000.00. She had sued Jacobini for damages arising from the death of her husband in a traffic accident.

We affirm.

Dora Hall's husband, Gene Hall, was driving his vehicle in the early morning hours of February 5, 1983 when the vehicle driven by Joel Marlin Bell collided with it. Bell is a plumber who sometimes worked for a construction company run by Jacobini. At the time of the accident title to the vehicle Bell was driving was in Jacobini.

An intoxilyzer test on Bell taken after the accident indicated that Bell had a .23% blood alcohol content. Bell was carrying a Florida driver's license. He entered a plea of guilty to involuntary manslaughter and was sentenced to two years in the Texas Department of Corrections. Before this accident Bell had been convicted of the offense of driving while intoxicated on two other occasions.

Bell was a party defendant along with Jacobini in this case. Jacobini was alleged to be negligent in entrusting his truck to be driven by Bell. Jacobini's principal defense to such allegation was that he did not own the vehicle.

Jacobini claimed he entered into an oral contract to sell the vehicle to Bell in the late summer of 1982. At trial, Bell testified he gave Jacobini $400.00 as a lump sum payment on the truck sometime in 1982. In his deposition Bell stated that he never paid any money down; he just started letting Jacobini take $100.00 a week out of his paycheck. Testimony of Jacobini's secretary indicated that Jacobini instructed her to collect some cash from Bell and Bell gave her $500.00 in cash in November 1982. She also indicated that "a hundred a month or a hundred a week" was to be taken out of his paycheck for the vehicle. The secretary further testified that the first $100.00 deducted was some 20 days after the accident.

The case was tried to a jury which answered twelve special issues finding: Bell guilty of causal negligence; Jacobini was the owner of the truck being driven by Bell; Bell was driving the vehicle with Jacobini's permission; Jacobini by ordinary care would have known that Bell had no valid Texas driver's license; Bell was a reckless and incompetent driver; and Jacobini knew Bell was a reckless and incompetent driver.

Thereafter, Jacobini moved for judgment non obstante veredicto asserting that the evidence proved conclusively that before the accident an oral agreement had been entered into transferring custody and control of the vehicle in question from Jacobini to Bell. Accordingly, Jacobini asserted that the doctrine of negligent entrustment was not applicable to him inasmuch as Bell acquired the right to possess and control the vehicle and needed no authority or permission from appellant to drive same. The trial court denied Jacobini's motion for judgment non obstante veredicto and rendered judgment on the verdict, whereupon a motion for new trial was filed and denied. This appeal was then perfected.

In point of error one Jacobini asserts that the trial court should have granted him a summary judgment, a directed verdict, and a judgment non obstante veredicto. We note initially that an order overruling or denying a motion for summary judgment is not a proper subject for appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). Further, the law is well settled that a defendant, by electing not to stand on his motion for directed verdict made after the plaintiff has introduced its evidence and rested its case, and by proceeding with the introduction of his own evidence, waives his motion for directed verdict unless the motion is reurged at the close of his case. See Wenk v. City National Bank, 613 S.W.2d 345, 348 (Tex.Civ.App.--Tyler 1981, no writ); Texas Steel Co. v. Douglas, 533 S.W.2d 111, 113-14 (Tex.Civ.App.--Fort Worth 1976, writ ref'd n.r.e.). Therefore, appellant may not now complain of the denial of either his motion for summary judgment or his motion for directed verdict. Lastly, a point of error contending that the trial court erred in failing to grant a judgment n.o.v. is a "no evidence" point. Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 861 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ); see also Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276, 277 (Tex.1970) (per curiam). Accordingly, appellant's first point of error is in fact a challenge to the legal sufficiency of the evidence and we will address it in conjunction with point of error four.

In his fourth point of error, Jacobini claims there was no evidence or alternately insufficient evidence to support jury findings concerning: Jacobini's ownership of the vehicle; whether he permitted Bell to drive his truck; and by so permitting was negligent. Jacobini urges that the evidence was uncontroverted that he had sold Bell the vehicle before the collision, hence no entrustment.

The testimony on Bell's ownership of the vehicle was from Jacobini himself, and his associates and employees, Bell included. For reasons set forth herein, we conclude that the trial court and the jury had legitimate questions as to the believability of Jacobini's witnesses and there was sufficient evidence to support jury findings that Jacobini was the owner of the vehicle.

The evidence to support the findings included: the truck was registered in Jacobini's name; "M & J Plumbing" signs were on the truck's sides (Note: "M & J Plumbing" was owned by Jacobini and Wally Martin); Jacobini used the truck as collateral on a bank loan; this note was renewed a number of times and the bank was not notified of any sale of its collateral; in their testimony the parties could not agree on the price to be paid or when the sale was actually made; and the fact that the only payment actually proved up was the one made after the wreck since there was conflicting testimony concerning the lump sum payment in November, 1982.

Thus far, points of error one and four have paralleled on the ownership question. In point of error four there is the further averment by Jacobini that there was no evidence or alternately there was insufficient evidence to support the jury findings that Jacobini as the true owner of the vehicle gave Bell permission to drive the truck and he was negligent in entrusting Bell to drive his vehicle.

Where the challenge to a jury finding is framed as an "insufficient evidence" point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If the court so determines, the finding should be set aside and a new trial ordered. Id.

In considering an "insufficient evidence" point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. See Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.--Amarillo 1977, writ ref'd n.r.e.). This Court may not substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. See Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ.App.--Amarillo 1981, writ ref'd n.r.e.).

Alternately, in determining a "no evidence" point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); Stodghill v. Texas Emp. Ins. Ass'n, 582 S.W.2d 102, 103 (Tex.1979); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In Re King's Estate, 244 S.W.2d at 661-62.

A "no evidence" point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Royal Indem. v. Little Joe's Catfish Inn, 636 S.W.2d 530, 531 (Tex.App.--San Antonio 1982, no writ); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEXAS L.REV. 361, 362-63 (1960).

In conducting our review we note there was testimony that Bell had worked for Jacobini five or six years and that they were "like brothers." Also, it was shown that Bell was using a Florida driver's license to cash Jacobini's checks to Bell for labor. Testimony reflected that Bell, Jacobini, and Jacobini's secretary lived close to each other, went to parties together and had business as well as personal relationships. In answer to whether Jacobini knew he was checking in at Cleburne on a probation before the accident occurred, Bell replied, "I imagine. Hell, I've been working off and on for Louie for five years, six years." Bell had no Texas driver's license and had two previous driving...